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June 8, 2019

Hoping Prez Trump picks a Pardon Attorney eager to make good on his big clemency talk

Around this time last year, as highlighted in posts here and here and here, President Trump was talking up the possibility of granting clemency to lots and lots of folks. (Talking to reporters in June 2018, he said “We have 3,000 names. We’re looking at them. Of the 3,000 names, many of those names have been treated unfairly,” and their sentences are “far too long.”)

Fast forward a year, and Prez Trump is nowhere near walking the clemency walk after having talked the clemency talk.  But, as this recent Washington Examiner article hints, perhaps there is movement afoot on this front as the Justice Department seeks to find a new (and needed) Pardon Attorney.  The article is headlined "Trump urged to pick his own pardon attorney," and here are excerpts:

Worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice.

There hasn’t been a political appointee in the post since the 1970s under President Jimmy Carter, but advocates say it could make a big difference, enhancing the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, giving Love and others the impression the department may already have a candidate in mind and creating concern that a career prosecutor could take the helm.

“I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?" said Sam Morison, who worked for 13 years as a staff attorney in the Office of the Pardon Attorney. “If they are just going to the U.S. attorney's offices, they are going to get someone who's a company man, and that's the idea,” he said.

Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases the Justice Department itself prosecuted.

Though theoretically authorized to call the White House counsel, the pardon attorney reports to the deputy attorney general. In 2016, Pardon Attorney Deborah Leff quit, citing squelched White House contact. Since then, the office has lacked a permanent leader.

Morison, who now helps clemency applicants, is hopeful based on Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.”

“Trump gets a lot of criticism, but I think it's refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he's probably correct.”

The White House has considered criminal justice reforms, including during a September panel featuring Trump's son-in-law and senior adviser Jared Kushner and celebrity Kim Kardashian.

Heritage Foundation scholar and panelist Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, returned to the White House in April for a private group discussion on clemency reform. Larkin noted Trump can create a West Wing office without congressional action and holds the exclusive constitutional power to pardon. Larkin separately advocates a commission to vet clemency requests, but that would require legislation.

CAN-DO founder Amy Povah, whose group favors “Clemency for All Non-Violent Drug Offenders,” also wants the pardon attorney divorced from the Justice Department. “We are relying on President Trump to finally be the hero we've been waiting for because he is an outsider who doesn't worry about shaking up the status quo,” she said....

The job posting closed as Trump fell behind former President Barack Obama on clemency. Trump has freed four prisoners, giving 12 people clemency including pardons, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had issued 17 clemency grants.

One person said to have applied to be pardon attorney, immigration judge and former Guantánamo Bay prosecutor Stuart Couch, declined an interview request. White House spokeswoman Mercedes Schlapp declined to say if Trump was aware of the job opening or planned to intervene.

Last year around this time, I had become (too) hopeful that Prez Trump was prepared to change in various ways the process and politics around clemency. But, a year later, I am back to (more justifiable) pessimism and cynicism on this front. I still think it possible, especially in the wake of the praise that Prez Trump has received from his commutation of Alice Johnson's life sentence and his support for the FIRST STEP Act, that Prez Trump and his team could do something big here. But I am not holding my breath, and I feel especially bad for all the federal prisoners and their families who have likely also been hoping for too much from this Prez on this front.

A few of many recent related posts: 

June 8, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 7, 2019

US Sentencing Commission releases data report on resentencings pursuant to Section 404 of the First Step Act of 2018 (making retroactive provisions of the Fair Sentencing Act of 2010)

I was very pleased to receive in my email in-box this afternoon news that the US Sentencing Commission has released this short new report titled "First Step Act of 2018 Resentencing Provisions
Retroactivity Data Report."  Here is how the 10-page report was summarized via the email:

Summary

The U.S. Sentencing Commission published new information on resentencings pursuant to Section 404 of the First Step Act of 2018 (enacted December 21, 2018).

Defendants sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act are eligible for a sentence reduction under Section 404 of the First Step Act.

Data Highlights [FN1]

    • 1,051 motions were granted for a reduced sentence.
    • 78.9% of granted motions were made by the defendant, 11.8% by the attorney for the government, and 9.3% by the court.
    • Offenders received an average decrease of 73 months (29.4%) in their sentence.
      • The original average sentence was 239 months.
      • The new average sentence was 166 months.

[FN1] The data report includes motions granted through April 30, 2019 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 17, 2019.

Importantly, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet this report shows it already has had a big impact.  Specifically, within just over four months, this part of the FIRST STEP Act has shortened more than 1000 sentences by an average of over 6 years. With six thousand years(!) of extra prison time (and taxpayer expense) saved, this report shows that even a modest reform can have a very big impact for some folks.

June 7, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (1)

"Invisible Stripes: The Problem of Youth Criminal Records"

The title of this post is the title of this paper recently posted to SSRN and authored by Judith McMullen. Here is its abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment.  Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities.  This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21.  Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor.  The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

June 7, 2019 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

June 6, 2019

Critically reviewing how the Bureau of Justice Statistics has reviewed its sex offender recidivism data

Last week I blogged here about the Bureau of Justice Statistics' press release providing highlights of this big report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)."  A helpful reader made sure I did not miss this notable new piece by Wendy Sawyer over at Prison Policy Initiative reacting to these documents.  This posting is fully titled "BJS fuels myths about sex offense recidivism, contradicting its own new data: A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data."  I recommend the piece in full, and here are excerpts:

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals.  The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release.  The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Prior related post:

June 6, 2019 in Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Spotlighting the enduring business of jails

Keith Humphreys has this notable new Washington Post piece headlined "How jails stay full even as crime falls."  Here are excerpts:

Crime has fallen dramatically in recent decades.  The number of people in jail for committing crimes hasn’t.

New Bureau of Justice Statistics data reveal that jails held 745,200 inmates in 2017, virtually identical to the 747,500 they held in 2005, and significantly higher than the 584,400 they held in 1998.  How does the correctional system keep jails full when there just aren’t as many crimes as there used to be?  By locking up an increasing number of people who are awaiting trial and could well be innocent.

The number of individuals held in jail while awaiting trial has soared 45.3 percent, from 331,800 in 1998 to 482,000 in 2017.  By contrast, the number of convicted inmates is almost the same as it was 20 years ago (252,600 in 1998 vs. 263,200 in 2017).  About 95 percent of the jail population’s growth is thus accounted for by people who haven’t been convicted of a crime.

By jailing more and more people who are awaiting trial, the criminal justice system can keep jails full no matter how much crime falls.  This may be seen as a good thing by the hundreds of thousands of people who work in jails, the companies that supply services to jails (i.e., food), and the communities that value correctional facilities as a form of economic stimulus.  But it’s a world-class bug from the point of view of innocent people who are jailed while awaiting trial, not to mention taxpayers.

Given the internal incentives to keep jails full, change will have to come from outside the criminal justice system.  The most obvious lever available, which is picking up steam in multiple states, is bail reform.  States could simply mandate that individuals accused of low-level crimes are automatically released on their own recognizance before trial. Jurisdictions that have experimented with this approach have found rates of appearing at trial in excess of 98 percent....

States, cities and counties should also consider closing or at least downsizing jails.  If the system is going to find ways to keep every bed full regardless of the crime rate, cutting the number of beds available may be the only way to prevent an increasing number of people accused of crimes from being punished as harshly as those who are actually convicted.

June 6, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Recording the Pain of Others: Lethal Injection's Visibility Problem"

The title of this post is the title of this new piece authored by Christen Hammock and now available via SSRN, Here is its abstract:

In July 2011, Georgia executed Andrew DeYoung for murdering his parents and sister.  Pursuant to a motion to preserve evidence brought by counsel for Gregory Walker, another man on Georgia’s Death Row, DeYoung’s execution produced the only existing video of a lethal injection in the United States, which remains under seal in a Georgia courthouse.  This effort to record an execution reverses the historical trend of making executions less visible by bringing them inside prison walls and limiting eyewitnesses.  Unlike similar cases, the successful motion to preserve DeYoung’s execution and autopsy on video did not litigate the public’s right to see executions, but instead argued that visual evidence of a botched execution was necessary to support another condemned man’s Eighth Amendment claim.

This project evaluates this strategy’s assumption that video representation is less mediated and thus more effective and accurate as evidence than traditional eyewitness and expert testimony.  This evaluation proceeds by examining the rhetorical strategies used in death penalty abolition litigation and judicial opinions that have, in turn, upheld and struck down methods of capital punishment.  Part I examines lethal injection’s “invisibility problem” and argues that this problem stems from secrecy surrounding state execution protocols and the overwhelming metaphor of healing that lethal injection’s “weapons” project.  Part II explores a potential solution to this problem — creating visual records of lethal injections — using the litigation surrounding DeYoung’s execution as an example.

June 6, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity"

C1_2019_Collateral_Consequences_Report_05172019_102_with_outline_RGBThe title of this post is the title of this notable new report from the National Association of Criminal Defense Lawyers (NACDL). Here is the report's executive summary:

On August 23–25, 2018, NACDL hosted its 17th Annual State Criminal Justice Network Conference and Presidential Summit in Atlanta, Georgia.  The Conference — Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity — examined the destructive effect that a vast network of penalties, debarments, and disabilities following a criminal conviction has on the millions of people who have come in contact with the criminal justice system. The Conference also explored the disparate impact that these collateral consequences have on communities of color.  At the same time, the Conference highlighted the groundbreaking work that is helping people break free from the shackles while providing a roadmap for national reform.

NACDL’s Executive Director, Norman L. Reimer, described the path to reform as following the emerging consensus that we must restore humanity to our criminal justice system. In pursuit of that goal, the Conference included more than just criminal defense lawyers; it brought together a community of prosecutors, judges, formerly incarcerated people, probation officers, social workers, and activists.  The 60th President of NACDL, Drew Findling, welcomed this diverse group of Conference participants and attendees to “an incredible congregation of people [who] all care about one thing: justice.”  These common grounds of justice and humanity formed the basis and set the tone for the entire Conference.

To facilitate the human narrative of justice through shared stories and lived experiences, every panel at the Conference included at least one person who was previously incarcerated in America.  Most panels included more than one formerly incarcerated person, and a few panels consisted entirely of formerly incarcerated people.  While there was some disagreement about the best terminology, resources, and methods to use in the fight against collateral consequences, the Conference represented an inclusive, humanistic approach to discussing the difficult topics of racism, morality, and social responsibility within the criminal justice system and the public at large.  Some of the broad recommendations for reducing the impact of collateral consequences included:

• Building up resources in communities of color

• Funding better education systems

• Protecting and asserting the right to vote

• Increasing awareness of mental health issues

• Reforming law enforcement education to foster improved community relations

• Building coalitions at the local, state, and national levels

• Rehabilitating and educating people while they are incarcerated

• Making prisons and prosecutions more transparent

• Banning the box on employment applications that asks about prior criminal records

• Providing more employment opportunities for people getting out of prison

• Sharing success stories and changing the narrative about people who have been incarcerated

This report is intended to facilitate more discussion and to inspire further action on these issues so that anyone — not just the Conference attendees and participants — can work to shatter the shackles of collateral consequences.

June 6, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

June 5, 2019

Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act "good time" fix becomes operational

In a few older FIRST STEP Act implementation posts (linked below), I flagged the statutory provision in the Act that delayed the immediate application of its "good time" fix.  (This fix provides that well-behaved prisoners will now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time.")  Though folks had been hoping to fix the fix so that it could be immediately applicable, now enough time has passed that we are getting close to when the "good time" fix is very likely to kick in (assuming the Attorney General complies with a key deadline in the Act).   The coming July arrival of the "good time" fix kicking in has prompted this notable new Marshall Project piece headlined "White House Pushing to Help Prisoners Before Their Release."  Here are excerpts:

The White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.

The early release is made possible by the First Step Act, a federal law passed with bipartisan support in December that is aimed at refocusing the criminal justice system on rehabilitation.  The prisoners scheduled to be let out in July are the largest group to be freed so far.  Their sentences are being reduced thanks to a clause that goes into effect next month, which effectively increased the amount of credit prisoners could get for good conduct in custody....

With weeks remaining before thousands more prisoners walk free, the Trump administration has assigned the U.S. Probation Office and the Department of Labor to help people prepare to return home.  White House officials are also seeking as much help as possible from the private sector, according to policy experts involved in the effort. They’ve asked major corporations to make pledges to hire the ex-prisoners while pushing the Social Security Administration to make sure each prisoner has a Social Security card needed for employment.  The Salvation Army is providing help with housing.  White House officials have discussed asking ride-share companies and public transportation agencies to offer free rides, the policy experts and advocates for prisoners said.

The Society for Human Resource Management, a national membership association for people working in human resources, has been recruited to work with states and private employers to offer education, legal advice and guidance on how companies can hire ex-prisoners. President and CEO Johnny C. Taylor Jr. said his organization had already begun that work last year but has ramped up a messaging campaign to let companies know that more than 2,000 employable people are about to start asking for jobs.“We need them, and they need us,” he said....

Outside groups that lobbied for the First Step Act say preparing prisoners for the workforce has never been more important, with unemployment at record lows and businesses scrambling to fill positions.“We know this administration is focused on the roughly 2,200 federal prisoners who are expected to be released this summer under the First Step Act,” said Mark Holden, senior vice president of Stand Together, a justice reform group funded by billionaire industrialist Charles Koch. “We all share the same vision that those leaving prison have access to basic needs and services that will help them safely return home and become contributing members of society.”

In this twitter thread, Kevin Ring of FAMM highlights some reasons I find this press piece curious, such as the fact that it provides little statistical or substantive contexts. One would not know, for example, that roughly 1000 federal prisons are released on an average week and that over 50,000 persons are released from state and federal prisons each month. And, as Kevin notes, a lot of folks who will now be getting the benefit of the "good time" fix may already be on home confinement and/or in halfway houses and working on employment prospects.

That all said, I still want to trump and praise the fact that the White House is actively involved now in trying to help ensure good outcomes for FIRST STEP Act beneficiaries and is calling upon both government agencies and private entities to help with this effort.  In addition to increasing the likelihood of good outcomes, this investment by the White House and these broader stories can and should further demonstrate that criminal justice reform does not and cannot stop when a new law gets passed.  Implementation, and follow-up by all sorts of players, is critical to success and requires persistent energy and commitment. 

(As an aside, Kevin's tweets note that the biggest number of released-at-once prisoners in the federal system came after the 2013 drug guideline reductions were made retroactive, which was partially supported by the Obama Administration.  That point in this context now has me wondering if the Obama Administration took any special steps to help those released federal prisoners or those who got out via Prez Obama's clemency initiative.)

Prior related posts:

June 5, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults"

The title of this post is the title of this new article available via SSRN authored by Adam Lamparello.  Here is its abstract:

For too long, the criminal law has only provided legal protections for defendants who exist on the margins, namely, those who suffer from mental retardation, insanity, or are too young to appreciate the consequences of criminal conduct.  In so doing, the criminal law has failed to address the gray area in which most defendants reside, and for which all defendants lack sufficient legal protections.  For example, at the guilt/innocence phase of a criminal trial, the legal system offers little, if any protections, for defendants afflicted with mental illnesses, personality disorders, neurological impairments, and borderline intellectual functioning.  This is fundamentally unjust, contrary to relevant empirical evidence regarding the effects of cognitive, psychiatric, and psychological disorders on culpability, and results in profoundly unjust sentences that, in many cases, are entirely disproportionate to a defendant’s culpability.  As such, the time has arrived for the courts and legislators to recognize that defendants need not be intellectually disabled, insane, or under the age of eighteen to trigger legal and constitutional protections at the guilt/innocence phase that account for a defendant’s reduced or, even, zero culpability in certain cases.

June 5, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

June 4, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"Reconsidering The 'Violent Offender'"

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy.  In that post, I noted some early draft of interesting papers from the project (which linked here in final form), and I just recently saw a new paper with the title that serves as the title of this post.  This new paper is authored by James Austin, Vincent Schiraldi, Bruce Western and Anamika Dwivedi, and here is part of its starting text:

People convicted of violent crimes have always been treated harshly by the criminal justice system, but in the four decades of rising incarceration rates from the early 1970s, punishment of the violent offender intensified disproportionately. Under President Bill Clinton, bipartisan consensus cemented the 1994 federal crime bill, enacting stricter sentencing laws for violent offenses at the federal level and incentivizing the same in the states.

Two decades later, even as President Barack Obama called for a reexamination of U.S. sentencing laws in 2015, he noted, “there are people who need to be in prison, and I don’t have tolerance for violent criminals” (C-SPAN 2015).  That same year, a Washington Times opinion piece by Newt Gingrich described criminal justice reform as a “rare area of bipartisan agreement in an otherwise sharply divided Congress,” but added, “we all agree that violent, dangerous criminals should be in prison, and the cost of incarcerating them is money well spent” (Gingrich and Nolan 2015).  Following suit, in 2017, Senator Kamala Harris, a self-identified “progressive” prosecutor stated that “we must maintain a relentless focus on reducing violence and aggressively prosecuting violent criminals” (Marcetic 2017).

Demonizing people as violent has perpetuated policies rooted in fear rather than fact. In this paper, we break from the tradition of punitiveness toward people convicted of violent offenses and argue that the violent offender label breaches the principle of parsimony, distorts proportionality, and fails as a predictive tool for future violent behavior. The label disproportionately affects people of color — black and Hispanic people comprise larger shares of people incarcerated for violent offenses in state prisons than white people (Bronson and Carson 2019).  In short, the violent offender label offers little to criminal justice policy.  Instead, justice policy should focus on those who actually commit violence, mitigate responses based on the experience of violent victimization, and discount the violent offender label as predictive of future violence.

Convincing policymakers and the public to change the approach to people charged with or convicted of violent offenses will require active education around the truths of violent offending alongside a significant cultural change. Affirming well-established criminal justice principles of parsimony and proportionality should take priority over a politics of fear.

We begin by detailing the social context and life histories that surround violent offending, and argue the case for parsimonious use of punishment.  While more serious and violent offenses may merit a proportionally greater response, the principle of parsimony reminds us that the punishment for violent offending should be the least coercive response necessary to achieve justice (Travis, Western, and Redburn 2014).  When we account for the life histories of victimization among incarcerated people, and the situational character of the violence in their lives, the principle of parsimony must admit mercy and forbearance.

June 4, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

June 3, 2019

Intriguing SCOTUS decision to GVR Fourth Amendment case "to consider the First Step Act of 2018" over DOJ opposition

A number of helpful folks made sure I did not miss the fact that the Supreme Court's order list today started with this disposition of Wheeler v. US:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018).

Interestingly, the original cert petition in Wheeler concerned a Fourth Amendment issue (discussed here at Bloomberg Law).  But, following the passage of the FIRST STEP Act, Wheeler's counsel filed this supplemental brief on the FIRST STEP Act issue.  That supplemental brief states that after the original petition was filed, "new legislation was enacted under which Mr. Wheeler could not be subject to the 20-year sentence imposed.  Mr. Wheeler files this Supplemental Brief to explain the impact of the new legislation on his sentence and to request relief from his unlawful sentence as an alternative remedy."

Here is part of the feds response to the supplemental brief which comes at the tail of of its cert opposition brief:

The First Step Act amended 21 U.S.C. 841(b)(1)(A) to reduce the statutory minimum sentence for certain drug offenses by recidivists from 20 years to 15 years.  See First Step Act § 401(a)(2).  But in Section 401(c), titled “Applicability to Pending Cases,” Congress provided that “the amendments made by th[at] section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”  § 401(c) (emphasis added).  Here, petitioner’s sentence was imposed in 2016, long before the First Step Act was enacted, and petitioner has been serving that sentence since that time....  The First Step Act is thus inapplicable to petitioner.

Petitioner’s contention (Supp. Pet. 4) that the First Step Act applies to all criminal cases pending on “direct appellate review” is incompatible with the language of the statute. Congress instructed that the relevant provisions of the First Step Act apply only to pending cases where “a sentence * * * has not been imposed.”  First Step Act § 401(c).

In this post back in December 2018, I highlighted some of the "pipeline" ambiguity concerning which on-going cases could or should get the benefit of the the new FIRST STEP Act provisions. Though one might read the GVR by SCOTUS here as an indication that the Court thinks all pending cases should benefit from the new legislation, it might be more accurate to say that the Justices want the Third Circuit to sort this matter out in the first instance.

June 3, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Splitting 5-4 in a distinctive way, SCOTUS rules against defendant seeking to avoid tolling of supervised-release term

The Supreme Court handed down four opinions this morning, but only one came in a criminal case and the opinion was not in one of the cases that so many criminal justice court-watchers are eagerly waiting for (like Gundy or Gamble or Haymond).  But the ruling this morning in Mont v. US , No. 17-8995 (S. Ct. June 3, 2019) (available here), on a technical issue of when federal supervised release terms run, should capture the attention of SCOTUS watchers because of the distinctive (and I think unprecedented) line-up of the votes in this 5-4 split opinion: 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, ALITO, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, KAGAN, and GORSUCH, JJ., joined.

The ruling of the Court begins and ends this way:

This case requires the Court to decide whether a convicted criminal’s period of supervised release is tolled — in effect, paused — during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connection with a conviction for a Federal, State, or local crime.” 18 U. S. C. §3624(e). Given the text and statutory context of §3624(e),we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period.....

In light of the statutory text and context of §3624(e), pretrial detention qualifies as “imprison[ment] in connection with a conviction” if a later imposed sentence credits that detention as time served for the new offense.  Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction.  Accordingly, we affirm the judgment of the Sixth Circuit.

The dissent begins this way:

A term of supervised release is tolled when an offender “is imprisoned in connection with a conviction.” 18 U. S. C. §3624(e).  The question before the Court is whether pretrial detention later credited as time served for a new offense has this tolling effect.  The Court concludes that it does, but it reaches that result by adopting a backwardlooking approach at odds with the statute’s language and by reading the terms “imprisoned” and “in connection with” in unnatural isolation.  Because I cannot agree that a person “is imprisoned in connection with a conviction” before any conviction has occurred, I respectfully dissent.

Though I will need to read the opinion closely to see whether there are some possible broader implications of this ruling, but this case shows yet again that Justice Gorsuch is much more inclined to vote in favor of criminal defendants (in non-capital cases) than other GOP appointees. And here we have Justice Ginsburg proving to be the swing voter delivering a loss to a criminal defendant.

June 3, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Fourteen+ years after inventing reasonableness review in Booker, SCOTUS finally grants cert to address how it works procedurally

The Supreme Court's new order list this morning includes an exciting blast (from the past?) for federal sentencing fans in the form of a cert grant in Holguin-Hernandez v. US, No. 18-7739. The petition for certiorari in this case sets forth this simple question presented: "Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence."   

Notably, the government has this slightly different accounting of what's at issue in this case in its cert opposition brief: "Whether the court of appeals correctly reviewed for plain error petitioner’s claim that the district court imposed a substantively unreasonable term of imprisonment for petitioner’s violation of the terms of his supervised release, when petitioner failed to object in the district court to that term of imprisonment."  (The two-page Fifth Circuit panel ruling in this case is here; SCOTUSblog has the briefing and other documents in this case at this link.)

There is a circuit split on this issue of just how reasonableness review is to operate procedurally, but that split has been pretty well established and entrenched for the better part of a decade.  I suspect that the recent new arrivals to the Supreme Court, particularly Justice Kavanaugh but maybe also Justice Gorsuch, may explain why this long-ignored issue has now gotten taken up by the Justices.

Sadly, it seems the cert grant in this case concerns only a procedural issues surrounding the standards of review rather than the substantive particulars of how circuit courts should judge the reasonableness of a sentence.  But, given that it has been nearly a decade since SCOTUS has said anything significant about reasonableness review (I think of the 2011 Pepper case as the last big ruling in this space), even this Holguin-Hernandez glass of reasonableness water looks like an oasis in the desert of post-Booker SCOTUS jurisprudence.

June 3, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 2, 2019

New Illinois marijuana legalization legislation gives particular attention to criminal justice concerns

As some readers know from my repeated mention of my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am especially interested in how marijuana reform can and should intersect with criminal justice concerns and should advance criminal justice reform efforts.  Consequently, I am especially pleased and intrigued that the new (soon to be official) Illinois marijuana legalization legislation gives particular attention to criminal justice matters.  This USA Today article, headlined "Illinois posed to legalize marijuana sales, expunge criminal records for pot crimes," provides some of the particulars:

Illinois is poised to legalize marijuana sales with sweeping legislation that would also automatically expunge the criminal records of people convicted of minor pot possession.

State lawmakers gave final approval to the bill Friday and Gov. JB Pritzker said he will sign the measure, which make Illinois the first state to legalize marijuana sales via its legislature.  Most other states that have legalized cannabis did so via a ballot initiative process.  Vermont's legislature legalized cannabis but prohibited commercial sales.

"This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance," Pritzker said in a statement. "In the interest of equity and criminal justice reform, I look forward to signing this monumental legislation."...

Prizker's office didn't give a timeframe for when he might sign the law, which would go into effect Jan. 1, 2020.  Under the system, adults could buy and possess up to 30 grams of cannabis "flower," along with marijuana-infused foods known as edibles, and small amounts of highly concentrated extracts. Non-residents could buy half the amount.

The law also establishes a system for taxing and regulating marijuana, and consumers would pay up to 34.75% tax on their purchases, depending on potency.  Regulators would give preference points to members of minority groups seeking to get business licenses, and state-certified labs would test products for potency and contaminants, a growing concern among users.  Backers say the measure will create jobs in communities around the state, an argument made by Canadian officials when they legalized marijuana nationally last year.

Money raised by the new taxes would first be dedicated to expunging an estimated 770,000 minor cannabis-related cases, according to the bill's language.  Expungement has long been a goal of marijuana-legalization advocates, who argued the federal government's so-called War on Drugs disproportionately targeted minorities.  Other states have similar provisions, usually added after the fact, but Illinois' law is the first to contain such a sweeping expungement provision from the start.

Any tax money left over after would be used to support drug-treatment and enforcement programs, improve mental health counseling access, and bolster the state's general fund.

"Cannabis was at the heart of our nation's disastrous War on Drugs.  This is a measure that will improve people's lives on a level commensurate with the devastation wrought by prohibition," said Steve Hawkins, executive director for the pro-legalization Marijuana Policy Project, which worked with lawmakers and Pritzker to write the law.  "Illinois is on the brink of replacing a shameful, destructive policy with the most far-reaching cannabis law ever enacted."

In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I urged states to utilize tax revenues gained from marijuana legalization to advance expungement efforts, and am so pleased to see Illinois make expungment efforts its very first funding priority.  In my article, I also urged the creation of administrative infrastructure to support this work in the form of what I call a "Commission on Justice Restoration."  I do not believe the Illinois legislation goes this far, but maybe future reforms in that state or elsewhere will. 

In the meantime, I realize I am way behind in providing here a round up of some posts from my blogging at Marijuana Law, Policy and Reform that highlight the intersections of marijuana reform and criminal justice issues.  So:

June 2, 2019 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"How to Convince Americans to Abolish the Death Penalty"

The title of this post is the headline of this New Republic commentary authored by Austin Sarat. Here are excerpts:

When New Hampshire abolished the death penalty on Thursday, the reaction to the news — at least nationally — was rather muted.  Here was a New England state, after all, whose machinery of death had rusted long ago.  “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported.  “The state has only one person on death row … and last carried out an execution in 1939.”...

But there is greater significance here than it seems.  For starters, New Hampshire joins a growing trend.  Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree.  (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.)  Four other states have a moratorium in place preventing anyone from being executed.  This period has been one of the most successful in the modern history of death penalty abolitionism.

And the politics of New Hampshire are not those of, say, Massachusetts.... While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.  There are thus important lessons from New Hampshire about how abolitionists can be successful across the country — namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values....

Traditionally, opponents of the death penalty have responded to [soft-on-crime] arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.”  Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution.  But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers.  It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.

New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens.  They allied themselves with the plight of the families of murder victims.  “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.

They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.”  And they enlisted conservative allies.  As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”

The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters.  They appealed to American values of fairness, equal treatment, and pragmatism.  In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”

Prior related post:

June 2, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)